Commentary South China Sea: Waters of Contention

​Justice Carpio’s Benham Rise 101

The notes of Supreme Court Senior Associate Justice Antonio T. Carpio on Benham Rise is very useful as the 13-million-hectare undersea region east of Luzon is in the news with the disclosure last week by Defense Secretary Delfin Lorenzana that Chinese survey ships have been spotted in the area last year.

Filipinos are familiar with Scarborough o Panatag Shoal , Pag-asa island and other features in the disputed Spratlys in the South China Sea but, Benham Rise?

It seems that even President Duterte is not familiar with Benham Rise based on his answer to GMATV’s Joseph Morong’s question last Monday night.

Morong: Good evening, can I ask you about Benham Rise? This is separate from the PCA ruling on the West Philippine Sea.

PRRD (President Rodrigo R. Duterte):Human rights?

Morong: Hindi, sir, Benham.

PRRD: Benham.

Morong: Yeah, ‘coz recently, sir, ‘yon pong Foreign Ministry nila said, that the Philippines cannot claim Benham Rise as its own territory. Your reaction first to that kind of statement?

PRRD: Who said it?

Morong: The Chinese Foreign Ministry po.

PRRD: Because they are claiming it.

Morong: Correct, sir.

PRRD: So I can understand. So vis-à-vis I can also say, you cannot also claim that because I am claiming it. But let us not fight about ownership or sovereignty at this time because things are going great for my country. But kung panahon na, it becomes commercial to me, then as I have said whether you like it or not, we’ll have to talk about the arbitral ruling.

Even Morong is mistaken because China is not claiming ownership of Benham Rise.

In that same presscon, Duterte was asked by Nikkei’s Mikhail Flores what would he do “following China’s incursion by its military into clearly a Philippine territory?”

Duterte’s answer was “No! There’s no incursion because may agreement kami. I invited… I will invite them to the shores of the Philippines for a visit. Wala, pinapalakilang ‘yanng… I don’t know whose’… Walang incursion diyan because it had our… We previously agreed that they can — research ship naman ‘yungano… But even their… Inimbitakonga ‘yung Russia, yung battleships nila. So walang incursion!”

He added: “We were advised of it way ahead. But maybe, we have every right also to ask, ‘O ano? Kamusta? Anongsadyamodito?” Parangganonlang ‘yun. We do not want to pick a fight. Things are getting great our way, so why spoil it?”

It’s not clear from Duterte’s answer if he has a clear grasp of the issue of the presence of China’s vessels in Benham Rise.

Here’s Senior Associate Justice Carpio’s brief on Benham Rise:

“Under international law, Benham Rise is not part of Philippine national territory because we do not have sovereignty over Benham Rise. However, we have “sovereign rights” (less than sovereignty, but exclusive and superior to the rights of other states) over Benham Rise. Under Article 77 of UNCLOS, we have the “sovereign right” to explore and exploit the oil, gas and other mineral resources in Benham Rise, and even the sedentary species (e.g., abalone, clams and oysters). The UN Commission on the Limits of the Continental Shelf has confirmed that Benham Rise is part of the Extended Continental Shelf (ECS) of the Philippines.

“Other states, like China, have the right to conduct in Benham Rise (1) fishery research because the fish in the ECS belongs to mankind; (2) surveys on water salinity and water currents because the water column in the ECS belongs to mankind; and (3) depth soundings for navigational purposes because there is freedom of navigation in the ECS. If the Chinese vessels were looking for submarine passages and parking spaces, that would be part of freedom of navigation and the Philippines has no reason to complain.

“However, if the Chinese vessels were conducting seismic surveys to look for oil, gas and minerals, then they would be in violation of UNCLOS because UNCLOS has reserved the oil, gas, minerals and even sedentary species in Benham Rise to the Philippines since Benham Rise is part of Philippine ECS. Therefore, the question that we should be asking is: did Chinese vessels conduct seismic and other surveys to look for oil, gas and other minerals in Benham Rise?”

China through Chinese Foreign Ministry Spokesperson Geng Shuang admitted their vessels were in the area of Benham Rise last year and claimed this has already been discussed by the foreign ministers of both countries last January.

Geng’s statement:

“First, in 2012, the UN Commission on the Limits of the Continental Shelf approved the submission made by the Philippines in 2009 in respect of the limits of the continental shelf beyond 200 nautical miles in the Benham Rise region, enabling the Philippines to carry out exploration and development of natural resources in this region. But it does not mean that the Philippines can take it as its own territory.

“Second, according to international law including UNCLOS, a coastal state’s rights over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters, nor do they affect foreign ships’ navigation freedom in the coastal state’s EEZ and on the high seas, or their innocent passage through the coastal state’s territorial sea as supported by international law.

“Third, according to the competent authorities, Chinese vessels for marine research did sail across relevant waters to the northeast of Luzon, the Philippines last year, exercising navigation freedoms and the right to innocent passage only, without conducting any other activities or operations. The remarks by some individuals from the Philippines are not consistent with the facts.

“Fourth, actually, in response to the Philippines’ concerns about activities by Chinese marine research vessels, foreign ministries of the two countries have had a friendly exchange of views last January to sort out the facts and properly address the issue.

“Fifth, working together, China and the Philippines have properly resolved their differences, added momentum to the development of the bilateral relationship, and driven forward practical cooperation across the board. It serves the common interests of the two countries and peoples, and meets the aspiration shared by peace-loving countries of the region and beyond. It is hoped that individuals of the Philippines will stop playing up the false information and do more to promote mutual trust.”

Brief background on Benham Rise:

Also known as Benham Plateau, it’s s a 13-million-hectare undersea region off the provinces of Isabela and Aurora and within the Philippine’s extended continental shelf (350 nautical miles from the shores)

Discovered by American geologist, Andrew Benham, in 1933, it is said to contain enormous gas deposits. Oceana Philippines, an environmental organisation said Benham Rise is a rich fishing ground and it should be protected.